RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 07a0205p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ NORTHLAND FAMILY PLANNING CLINIC, INC.; X NORTHLAND FAMILY PLANNING CLINIC, INC. - - WEST; NORTHLAND FAMILY PLANNING CLINIC, INC. - - Nos. 05-2417/2418 - EAST; SUMMIT MEDICAL CENTER, INC.; PLANNED - PARENTHOOD OF MID-MICHIGAN ALLIANCE; > , PLANNED PARENTHOOD OF SOUTH CENTRAL - MICHIGAN; STANLEY M. BERRY; TIMOTHY R.B. - JOHNSON; KAROLINE S. PUDER; RONALD C. - STRICKLER, - Plaintiffs-Appellees, - - - v. - - MICHAEL A. COX, Attorney General of the State of - Michigan, - Defendant-Appellant (05-2418), - - - KIM L. WORTHY, Prosecuting Attorney for Wayne - County, - Defendant, - - STANDING TOGETHER TO OPPOSE PARTIAL-BIRTH- - - ABORTION, - Proposed Intervenor-Appellant (05-2417). - - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 05-70779—Denise Page Hood, District Judge. Argued: October 26, 2006 Decided and Filed: June 4, 2007 Before: MARTIN and COOK, Circuit Judges; BUNNING, District Judge.* * The Honorable David L. Bunning, United States District Judge for the Eastern District of Kentucky, sitting by designation. 1 Nos. 05-2417/2418 Northland Family Planning Clinic, et al. v. Cox, et al. Page 2 _________________ COUNSEL ARGUED: Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, B. Eric Restuccia, OFFICE OF THE ATTORNEY GENERAL, APPELLATE DIVISION, Lansing, Michigan, for Defendants. Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Plaintiffs. ON BRIEF: Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, B. Eric Restuccia, OFFICE OF THE ATTORNEY GENERAL, APPELLATE DIVISION, Lansing, Michigan, Ronald J. Styka, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Defendants. Brigitte Amiri, S. Talcott Camp, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Sanford M. Cohen, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, Michael J. Steinberg, Kary L. Moss, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Plaintiffs. Denise M. Burke, Mailee R. Smith, AMERICANS UNITED FOR LIFE, Chicago, Illinois, Kurt G. Calia, COVINGTON & BURLING, Washington, D. C., for Amici Curiae. _________________ OPINION _________________ BOYCE F. MARTIN, JR., Circuit Judge. The Michigan Attorney General appeals the district court’s decision declaring unconstitutional a state law that regulates abortion methods. Because we find that Michigan’s law fails to comply with the explicit limitations that the Supreme Court has established for statutes regulating abortion, we agree with the district court’s disposition, and affirm. I. In 2004, after a proposal by a citizen initiative petition, the Michigan Legislature passed the Legal Birth Definition Act. The purpose of the Act was to prohibit the practice colloquially referred to as partial-birth abortion. The Act does not on its own terms ban any specific type of abortion procedure. Instead it creates a protected legal status for a partially-delivered fetus that it terms a “perinate.” Mich. Comp. Laws § 333.1083(1) (“A perinate shall be considered a legally born person for all purposes under the law.”). A perinate is defined by the Act as “a live human being at any point after which any anatomical part of the human being is known to have passed beyond the plane of the vaginal introitus until the point of complete expulsion or extraction from the mother’s body.” Mich. Comp. Laws § 333.1085(d). The Act provides civil and criminal immunity for physicians who perform procedures that result in the injury or death of a perinate where the perinate is “expelled from the mother’s body as a result of a spontaneous abortion,” as well as in circumstances where: in that physician’s reasonable medical judgment and in compliance with the applicable standard of practice and care, the procedure was necessary in either of the following circumstances: (i) To save the life of the mother and every reasonable effort was made to preserve the life of both the mother and the perinate. (ii) To avert an imminent threat to the physical health of the mother, and any harm to the perinate was incidental to treating the mother and not a known or intended result of the procedure performed. Nos. 05-2417/2418 Northland Family Planning Clinic, et al. v. Cox, et al. Page 3 Mich. Comp. Laws § 333.1083. As the state acknowledges, “the practical effect of the [Act] on abortion procedures is that any physician who performs an abortion that results in the injury or death of a ‘perinate’ would be subject to criminal prosecution unless excused by the life or health exceptions.” Appellant’s Br. at 6. The plaintiffs in this case — six health care facilities and four obstetrician-gynecologists — filed suit on March 1, 2005, prior to the March 30, 2005 effective date of the Act. They sought declaratory and permanent injunctive relief, and moved simultaneously for a preliminary injunction to prevent enforcement of the Act during the pendency of the litigation. Two weeks after the complaint was filed, the parties stipulated to a Temporary Restraining Order until the district court could rule on the motion for preliminary injunction. The Michigan Attorney General subsequently issued an opinion purporting to limit the scope of the Act. The opinion provides that in light of federal case law, the Act “has the effect of banning, with certain exceptions, those dilation and extraction (D&X) abortion procedures that require the killing of a ‘perinate’ as defined in the Act. The [Act] does not have the effect of banning the dilation and evacuation (D&E) procedures.” A.G. Op. at 11 (citing Stenberg v. Carhart, 530 U.S. 914 (2000); Women’s Medical Professional Corp. v. Taft, 353 F.3d 436 (6th Cir. 2003)). After the issuance of the Attorney General’s opinion, Michigan filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The state argued that based on the substance of the opinion and the Attorney General’s authority to bind the state’s district attorneys, the statute could not be said to prohibit any constitutionally protected methods of abortion, and that the plaintiffs’ case was therefore moot. With the consent of the parties, the district court consolidated the proceedings regarding the motions for preliminary and permanent injunctive relief. It issued an opinion on September 12, 2005 in which it denied the state’s motion to dismiss, reasoning that an Attorney General’s opinion “does not constitute a ruling on the constitutionality of the Act.” Northland Family Planning Clinic, Inc. v. Cox, 394 F. Supp. 2d 978, 985 (E.D. Mich. 2005). It also declared the statute unconstitutional because it imposed an undue burden on a woman’s right to terminate her pregnancy by prohibiting the D&E procedure, because it failed to adequately protect the health of the woman, and because it was void for vagueness due to its confusing language. Id. at 985-89. The district court’s order did not provide any injunctive relief, but simply declared the Act unconstitutional. The district court also denied a motion to intervene filed by a group called “Standing Together to Oppose Partial- Birth-Abortion” or “STTOP.” See id. at 989-90. STTOP is a ballot-question committee of Right to Life of Michigan, Inc., which was formed to promote the passage of the Act. The Attorney General and STTOP both appeal from the district court’s order. II. A full understanding of the legal issues presented by this appeal requires some background on the abortion procedures in question. See Stenberg, 530 U.S. at 922 (“[O]ur discussion might seem clinically cold or callous to some, perhaps horrifying to others. There is no alternative way, however, to acquaint the reader with the technical distinctions among different abortions methods and related factual matters, upon which the outcome of this case depends.”). During the first trimester, abortions are typically performed by “suction curettage,” where the doctor empties the uterus with suction by dilating the cervix, inserting a plastic tube into the uterus, and using suction to remove the embryo or fetus. Another relevant abortion method that is performed during the first trimester is a “medical abortion,” where the physician administers a medicine that both causes the death of the fetus and induces the uterus to contract and expel its contents. Nos. 05-2417/2418 Northland Family Planning Clinic, et al. v. Cox, et al. Page 4 During the second trimester, the increased size of the fetus requires more complex methods for its removal. See Stenberg, 530 U.S. at 925. The most common of these methods is called “dilation and evacuation,” or “D&E.” Id. D&E typically involves dilation of the cervix, followed by the extraction of part of the fetus through the cervix. The resistance caused by pulling the extracted portion of the fetus against the cervix causes the fetus to disjoin and die, after which the remaining parts are extracted. Id. A variation on “D&E” is known as “dilation and extraction,” or “D&X,” or alternatively “intact D&E.”1 The D&X procedure involves evacuating or otherwise compacting the fetus’s skull while the head is still in the uterus so that the head will pass easily through the cervix. Where the fetus presents itself head first, the head is emptied and compressed first, after which the entire fetus is removed intact. If the fetus presents itself feet first, in the breech position, it is partially delivered to the point where the physician can access the fetus’s head so as to puncture it and remove the contents. See Taft, 353 F.3d at 439-40. In some circumstances, D&X is considered by certain medical experts to be safer for the pregnant woman than D&E because it “involves less risk of uterine perforation or cervical laceration because it requires the physician to make fewer passes into the uterus with sharp instruments and reduces the presence of sharp fetal bone fragments that can injure the uterus and cervix,” reduces the risk of retained fetal tissue or “free floating fetal head,” and takes less time and involves less blood loss, trauma, and exposure to anesthesia.